Monday, June 08, 2009

My "new" fair use book

West Publishing just put out a "new" treatise of mine on fairuse in copyright. Here is a link to buy it ($200, free shipping!). "New" is in quotes because the book goes back to 1985, when BNA published the first edition. The book got off to a good start: the week after it was published the Supreme Court cited it in its Harper & Row, Publishers v. Nation Enterprises opinion, the case about the Nation magazine's unauthorized publication of excerpts from former President Gerald Ford's memoirs before those memoirs were published. The Court later cited it in the 2 Live Crew parody case, as have lots of lower courts. In 1995 a second edition was published. But the book languished beginning in the late 1990s and went out of print. I discovered it was out of print in a funny way: I was asked for two copies of it by an erstwhile client. I called up BNA and asked for the copies. They said they doubted they had them because the book was out of print and they had destroyed all the copies. This was news to me, but at least all rights reverted to me. (This didn't include, btw, the electronic files which were on a funky proprietary system).

In my contract for the book with West, the problem of not notifying the author when the book goes out of print is well taken care of: under the rights given to West for the "new" book, the book can't ever go out of print even if West decides never to publish another copy and pulls it off of Westlaw. Gone, apparently, are the days when authors had their copyrights revert when the book goes out of print, but let's thank our stars for the termination rights in Section 304.

Anyway, to continue the saga of the out of print fair use book. In 2007, West published the 7 volume, 6,000 page general treatise on copyright I wrote. Given that the fair use treatise was out of date, I folded into that general book most of the old fairuse treatise as Chapter 10, revised and updated to about 500 pages. (Since I didn't have the electronic files, see above, this meant OCR'ing the hard copy and a lot of clean-up work).

I have come to think though, given the increased importance of fairuse, and the fact that the fair chapter was lost amongst the 6,000 pages of the larger treatise, that I should spin it off into its own book again, so that's what this "new" book is. While it remains part of the 6,000 general treatise, the spin off has two new chapters not found in the general treatise. One chapter is on the early 18th century English cases from whence fairuse arose, and the other chapter is on current international issues. The old English cases are both interesting and important for showing the boldness of the common law judges in forging the doctrine. I expect to expand the international chapter in the next edition given the increased importance of limitations and exceptions and the debates about the three-step test.

The book will be updated once a year and will be reissued every year as a new soft copy to avoid those ultra-annoying pocket parts as well as loose-leaf inserts.

I suspect I'm not the only one who'd be delighted if you'd comment here on the fair use principles that are apparently being ignored or violated by the pending Google settlement.

As for myself, I can't see how Google's use of the entire content of books (less graphics) in a profit-making enterprise in which they allow U.S. residents to view up to 20% of the contents of virtually every out-of-print book in the world constitutes fair use. This settlement, it need to be emphasized, is about the treaty-granted U.S. copyrights of virtually all the book published in the world in the last half-century or more. It in not just about books by U.S. authors.

In short, how can a viewer-selected 20% of an entire book being used by Google constitute fair use? How can Google be engaging any anything from scholarship to journalism when it doesn't even select is quoted? And what about the implied demand that the settlement makes for either a Google monopoly or a central tracking agency that monitors what books you and I are reading? After all, the existence of just five Google-like databases would mean that, absent reader tracking, the entire contents of those books would be freely available without the copyright holder's permission or even knowledge. It would not be hard to create an application that, given a title, would go to the five websites and provide a complete copy of a book, neatly packaged and formatted.

European authors seem more aware of the implications of this settlement than their U.S. counterparts. Perhaps more important, their governments and the EU have begun to take action, with sound grounds from their protest in the copyright treaties we have signed. I have contacts there, so I'm linking to the events in Europe on a web page

http://inklingbooks.com/googlesettlement/googlesettlement.html

By the way, I was one of seven authors (or their representatives) who successfully petitioned the Manhattan court for the four-month extension. I'm delighted that this delay is giving the Justice Department time to investigate and even more delighted that it is giving those outside the U.S. time to oppose what may prove to be the largest copyright theft in human history.

We should never forget that while Google's efforts are aimed at the high-volume use of out-of-print books of limited economic value, the response that's likely to come from overseas will almost certainly center on our highly profited movie and music industries. They'll hit us where it hurts most backed by the zealous support of their own movie and music industries. If the Google settlement is passed, they'll be on excellent grounds for playing and profiting from this global game of tit for tat.

About Me

This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.